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FLYNOTES: LABOUR – Dismissal – Operational requirements – Individual unfair dismissal dispute – Lis alibi pendens and locus standi points in limine raised – Employee’s referral to court preceded by referral by union alleging only substantive unfairness – Individual employee alleges dismissal was automatically unfair, alternatively substantively unfair – Point in limine regarding locus standi has no merit – Respondent’s points in limine dismissed – Labour Relations Act 66 of 1995, s 189A(7).

 

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Reportable

Case no: JS202/22

 

In the matter between:

 

NOBESUTHU SHEILA MUGAVAZI                                                Applicant

 

and

 

SOUTH AFRICAN AIRWAYS TECHNICAL SOC

LIMITED                                                                                           Respondent

 

Heard:          15 May 2024

Delivered:    14 June 2024

Summary: Lis alibi pendens and locus standi points in limine raised in respect of an individual unfair dismissal dispute referred to the court by an individual employee following a section 189A consultation process in which the individual and several other employees were represented by their trade union. The individual employee’s referral to the court was preceded by a referral made by the union alleging only substantive unfairness. The individual employee alleges that the dismissal was automatically unfair, alternatively substantively unfair.

 

JUDGMENT

 

GANDIDZE, AJ

 

Introduction

 

[1]  The applicant employee, Ms Nobesuthu Mugavazi was dismissed pursuant to a section 189A of the Labour Relations Act (LRA)[1] process that her respondent employer, South African Airways Technical SOC Ltd, embarked on. In that section 189A process, Mugavazi and several other employees were represented by their trade union, the National Union of Metalworkers of South Africa (NUMSA). Following the dismissal of its members, on 16 January 2022 NUMSA referred a dispute to this Court challenging the substantive fairness of the dismissal of 1193 employees who are its members. That case was filed under case number JS30/2022. Two months later and in April 2022, Mugavazi referred to this Court an alleged automatically unfair individual dismissal dispute in terms of section 187(1)(d) and (f) of the LRA, alternatively a claim that the dismissal was substantively unfair.

 

[2]  The respondent has raised two points in limine in respect of the applicant’s referral, viz, lis alibi pendens and a lack of locus standi. It seeks an order upholding the points in limine and dismissing the applicant’s claim, alternatively an order suspending the applicant’s claim pending the finalisation of the dispute filed by NUMSA.

 

NUMSA and the applicant’s referrals to this court

 

[3]  NUMSA challenged the dismissal of its members on the grounds that the reasons given for effecting the retrenchments did not constitute a rational and fair intervention and are unfair, that alternatives to dismissals were not explored and that selection criteria were not applied fairly and consistently. The order sought is that the dismissals were substantively unfair and for all the dismissed employees to be re-instated.

 

[4]  The applicant’s dispute relates to an alleged automatically unfair dismissal as she was selected for retrenchment on discriminatory grounds, alternatively a substantively unfair dismissal for reasons that are not automatically unfair.

 

[5]  In respect of the automatically unfair dispute, the applicant alleges that she was selected for retrenchment because she was a shop steward and hence her dismissal is in contravention of section 187(1)(d) of the LRA which provides that a dismissal is automatically unfair if the reason for dismissal is that an employee took action against the employer by exercising any right conferred by the LRA. The rights which are said to have been exercised are the rights to be a member of and participate in the activities of a trade union as provided for in section 5 of the LRA. Second, the applicant alleges that she was selected for retrenchment because of her medical condition which prevented her from working the night shift, hence unfair discrimination on a ground or grounds listed in section 187(1)(f) of the LRA.

 

[6]  In the alternative, the applicant alleges that her dismissal was substantively unfair as no selection criteria were applied, that a fair selection criterion would have resulted in her retention, that no interviews were conducted to select the best candidate and that she was furnished with reasons for her non-retention only after she had lodged a complaint.

 

[7]  She seeks re-instatement, alternatively maximum compensation.

 

The parties’ respective submissions on the lis alibi pendens point

 

[8]  The respondent submits that ‘in as much as the reason for the dismissal does not in itself constitute a dispute, this claim constitutes duplication of legal proceedings as there is pending litigation between the same parties, based on the same cause of action and in respect of the same subject matter.’ The respondent also places reliance on Harms[2] where the following is stated:

‘The institution of further proceedings between the same parties relating to the same subject matter while the first proceedings is pending is prima facie vexatious’.

 

[9]  According to the respondent, the requirements of lis alibi pendens are met because there is (a) pending litigation (b) between the same parties or their privies (c) on the same cause of action (d) before the same court and (e) seeking the same relief. The submission is further that the requirement of same cause of action is met where the other proceedings involve determining a question that is ‘necessary for the determination of the  present case and is substantially determinative of its outcome’, and the fact that the same relief is sought is also a consideration.[3]

 

[10]  Reliance was also placed on the decision in Nestle (South Africa) Pty Ltd v Mars Incorporated (Nestle)[4] which found that once a suit has been commenced before a tribunal that is competent to adjudicate upon the claim,  that suit must generally be brought to its conclusion before that tribunal and that the claim should not be replicated.

 

[11]  The judgment of this court in Shaku v South African Local Government Bargaining Council and Others[5] is also cited and relied upon. There the court found that it could not entertain a second review application filed by an employee in circumstances where the employee’s trade union had also filed a review application. The court dismissed the arguments that the first review application was filed without the employee’s instruction and that the parties were different.

 

[12]  The court was implored to take into account the real possibility that if the two actions are allowed to run concurrently, two conflicting judgments may be handed down.

 

[13]  The applicant’s submissions were compiled by Advocate N Mohlala but Mr Mabaso argued the matter.

 

[14]  Because the alleged Schedule A attached to NUMSA’s statement of case with the list of applicants could not be found when the court file was inspected, it was denied that the applicant was part of that case.

 

[15]  It was submitted that the applicant referred her dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation, whereas NUMSA skipped this step. For this reason, the respondent successfully excepted to NUMSA’s Statement of Case. Therefore, it cannot be said that there is another matter involving the applicant pending before this court, when the claim filed by NUMSA has been found not to be properly before court.

 

[16]  The further submission is that the applicant distanced herself from the dispute referred to this Court by NUMSA and that NUMSA and the applicant are not seeing eye to eye.

 

Analysis of the lis alibi pendens point

 

[17]  The purpose of lis pendens is to prevent the duplication of legal proceedings.[6]

 

[18]  That there is litigation between the same parties is common cause. There is the present court action. Then there is also JS30/2022 which lists the applicant as a litigant in that matter. At the hearing of the matter the applicant did not persist with the argument that she was not party to those proceedings after Schedule A which is attached to NUMSA’s Statement of Claim was produced but persisted with the argument that she distanced herself from the claim filed by NUMSA.   

 

[19]  The dispute between the parties in the two actions relate to the fairness or otherwise of the applicant’s dismissal. 

 

[20]  The applicant’s submission that the dispute that NUMSA referred to this court is an unfair discrimination dispute whereas the applicant intends to pursue an ‘unfair dismissal’ dispute is incorrect having regard to the applicant’s own Statement of Case and the Statement of Case filed by NUMSA, which the respondent annexed to its supplementary submissions in the point in limine.

 

[21]  In the claim filed by NUMSA, it is alleged that the members dismissals, including that of the applicant are substantively unfair. That is the cause of action in that dispute.

 

[22]  The applicant’s claim in the present case is that her dismissal was automatically unfair, alternatively substantively unfair. Therefore the applicant is pursuing two causes of action against the respondent, albeit in the alternative.

 

[23]  The alternative claim of a substantively unfair dismissal is the same cause of action pursued on applicant’s behalf in the claim filed by NUMSA. Therefore, on the face of it there is clearly a duplication of legal proceedings as it relates to this cause of action and l return to this issue below.

 

[24]  The situation is different with the automatically unfair dismissal. There is only the one claim for an alleged automatically unfair dismissal, which claim is in the applicant’s individual referral to this court and is not by the claim filed by NUMSA. In argument Mr Mahomed conceded that the claim filed by NUMSA would have to be amended to incorporate the alleged automatically unfair dismissal dispute in respect of the applicant for the court to entertain that cause of action. This is an acceptance that the question to be determined in the claim filed by NUMSA is not the same question to be determined in the alleged automatically unfair dismissal claim. Moreover, different tests and different onuses apply to these causes of action. Of course in practice such claims are determined together for convenience because the evidence in respect of both causes of action may well overlap, but they remain two separate causes of action. Therefore the lis alibi pendens defence cannot be successfully invoked in respect of the alleged automatically unfair dismissal claim.

 

[25]  On the facts of this case there are considerations which l have taken into account in deciding the lis alibi pendens plea in respect of the alleged substantively unfair dismissal claim.

 

[26]  The first is that it was the applicant who first pursued her alleged unfair dismissal dispute at the CCMA in 2021, long before NUMSA filed the claim in this court in January 2022. Therefore, strictly speaking it is the claim filed by NUMSA on behalf of the applicant which should be met with a lis alibi pendens as that claim was filed after the applicant had set the ball rolling in respect of her alleged unfair dismissal claim. The fact that NUMSA was the first to refer the dispute to this court is irrelevant. What matters is that it was the applicant who kick started the process of challenging her dismissal through the CCMA, which is a mandatory step before filing a claim in this court.

 

[27]  The second is that it is evident from her submissions that the applicant has categorically distanced herself from the claim filed by NUMSA. That this is the applicant’s position is not in dispute, subject only to the second point in limine in relation to locus standi which l return to below. The applicant could have simply withdrawn as an applicant from the dispute filed by NUMSA, but even in the absence of that withdrawal, she has taken a position which she has communicated unequivocally that she distances herself from the claim filed by NUMSA. It is an election that she has made and which she is entitled to make, especially in circumstances where she was the first to start the process of challenging her alleged unfair dismissal claim. Any attempts by her in future to insist that she is an applicant in the claim filed by NUMSA should be met with a response that she distanced herself from that claim

 

[28]  Since the applicant has disassociated herself from the claim filed by NUMSA, it follows that the risk of conflicting judgments should no longer be a concern for purposes of deciding the point in limine.

 

[29]  Yet another consideration is that as things stand, the respondent cannot seriously argue that the claim filed by NUMSA is still a live dispute. It’s point in limine claim that the court lacked jurisdiction to entertain the claim as the dispute was not referred for conciliation was upheld by this court, and NUMSA has since appealed to the Labour Appeal Court. The applicant submitted that she referred her dispute to the CCMA when she realised that NUMSA had not referred the dispute to the CCMA for conciliation. Because her referral was late, she applied for condonation, which was granted.  If anything, the applicant is to be commended for being pro-active, and for not leaving such a matter in the hands of a union to decide when to take steps when it wished to do so.

 

[30]  Against that background, upholding the lis alibi pendens point in this dispute would result in an injustice towards the applicant. She will be prevented from pursuing a claim which she has properly brought before court, in circumstances where NUMSA’s claim may in fact be found not to have been properly placed before court due to the fact that the dispute was not conciliated. Of course it would suit the respondent for the present case not to proceed given that the NUMSA claim has thus far been successfully met with legal challenges, in which case that might just be the end of the applicant’s challenge to her alleged unfair dismissal claim against the respondent. That is the injustice that will result if this court upholds the lis alibi pendens point in favour of the respondent.

 

[31]  In her submissions the applicant pointed out that the respondent is raising procedural issues and had not raised any issues with the merits of her claim and that with reference to PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana,[7] it would be inappropriate for the court to dismiss the applicant’s claim which is properly before court. I have already found that there is no merit to the lis alibi pendens point, which is dispositive of this submission.

 

[32]  It is trite that equity and fairness must be taken into account to prevent injustice to litigants when the plea of lis alibi pendens (or rei judicata) is raised,[8] and all the above stated militates against upholding the lis alibi pendens defence in this matter.

 

[33]  Before closing off on this point in limine l mention that none of the judgments relied upon by the respondent in support of this lis alibi pendens point deal directly with the issue that the court is confronted with in this matter. For instance, in Shaku a trade union had filed a review application on behalf of its member, and subsequently, the same member filed another review application. Clearly that state of affairs should correctly be met with a lis alibi pendens defence. The facts of the present case are not that straight forward.

 

[34]  Where it applies, the lis alibi pendens rule is not inflexible and each case must be decided on its own facts.[9]

 

[35]  l turn to the locus standi point.

 

The parties’ respective submissions on locus standi

 

[36]  It is the respondent’s case that section 189A(7)(b) precludes the applicant from referring an individual unfair dispute to this court. According to the respondent, only the trade union or employees who are non-unionised and were consulting parties during a section 189A process can refer an unfair dismissal dispute to this court pursuant to a section 189A process. The argument is further that such referrals can only be made on behalf of the collective and not by individuals as the applicant has sought to do. Support for such an interpretation is said to be found in the fact that section 189A(7)(a) which gives the option to strike is meant for the collective (because individuals cannot strike). Interpreting the provision as including individuals would result in absurdity and place the rights of individuals above those of the collective, so the argument went. The court was referred to the decisions in Watts v Fidelity Corporate Services (Pty) Ltd[10], NUMSA and Others v SA Five Engineering and Others[11], and Certification of the Constitution of the Republic of South Africa[12] which are said to be in support of the contention advanced by the respondent. In oral argument the court was also referred to September and Others v CMI Business Enterprise CC[13].

 

[37]  Reliance is also placed on section 200 of the LRA, which the respondent submits supports its contention that the trade union refers the dismissal dispute to this court in a representative capacity and as ‘privy’ to its members.

 

[38]  For her part, the applicant submits that she referred her dispute to the CCMA in November 2021 when she realised that NUMSA had not referred the matter to the CCMA as she expected it to do. She could not sit and do nothing. She also states that she was free to terminate her membership with NUMSA or NUMSA’s mandate and pursue her dispute. Insisting that she should continue to be a member of NUMSA constitutes a violation of her right to freedom of association.

 

[39]  It is also the applicant’s submission that the respondent did not raise the locus standi point at the CCMA and did not oppose her condonation application, which was granted on 5 January 2022. The matter was unsuccessfully conciliated on 21 January 2022, followed by a referral to this court in April 2022.  

 

[40]  The applicant also relies on section 191(5)(b)(ii) which provides that ‘the employee’ may refer a dispute to court following failed conciliation if the employee alleges that the reason for dismissal is based on an employer’s operational requirements. The submission is that this provision does not require that a trade union refer the dispute, as opposed to an employee.

 

Does the applicant lack locus standi to refer an unfair dismissal dispute to this court

 

[41]  Section 189A(7) provides as follows:

 

‘(7)  If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189(3)-

(a)  …

(b)  a registered trade union or the employees who have received notice of termination may either-

(i)  give notice of a strike in terms of section 64(1)(b) or (d); or

(ii) refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11).’ (my emphasis).

 

[42]  Therefore, disputes about whether there is a fair reason for a dismissal must be made in terms of section 191(11).

 

[43]  Section 191(11) provides that a referral in terms of subsection (5)(b) must be made within 90 days of the CCMA (or Council) certifying that the dispute remains unresolved.

 

[44]  Section 191(5)(b)(ii) provides that an employee who alleges an unfair dismissal dispute on operational grounds may refer the dispute to the CCMA.

 

[45]  As subsection 189A(7)(b) provides that the dispute must be referred to this court in terms of section 191(11), which in turn refers to section 191(5)(b), an employee has a right to refer an unfair dismissal dispute to this court in their individual capacity.

 

[46]  Section 189A(7)(b) is subject to section 191(11). This finding makes it unnecessary to engage in an analysis of whether section 189A(7)(b) is confined to trade unions and employees who are not unionised. The answer to who can refer an unfair dismissal dispute to this court pursuant to a section 189A process lies in section 191(11), read with section 191(5). Therefore, there is no merit to the respondent’s contention that only a trade union, to the exclusion of the impacted employees, can  refer a dispute to this court challenging the substantive fairness of a dismissal.

 

[47]  Of course by virtue of section 200 of the LRA, a trade union could also refer such a dispute in its own interest, acting on behalf of its members and in the interests of its members.

 

[48]  The absurdity in the respondent’s submissions is evident from these hypothetical scenarios. What if the union decides, as happens from time to time, that it will not challenge the dismissal in this court because it adopts the view that the claim has no prospects of success? Does that mean that the affected members who do not agree with the union that there are no prospects of success are precluded from referring that dispute to this court? And what if the trade union gets de-registered soon after the dismissal of the employees pursuant to a section 189A process. Does that mean the employees who were dismissed cannot pursue the dispute? And how about an employee deciding that they no longer want to be a member of the trade union that represented them during the section 189A process. Does that mean such an employee cannot pursue the dispute in their individual capacity?

 

[49]  Fortunately the answers to all these questions lie in section 189A(7), section 191(11) and section 191(5)(b), read in that order.

 

[50]  There is also merit to the applicant’s submission that the respondent could have but did not raise the locus standi point in limine at the CCMA. However, l also accept that the failure to raise the point then cannot be a bar to the respondent raising the point in these proceedings.

 

[51]  For completeness the judgments of Watts, SA Five Engineering, Certification and September relied upon by the respondents are irrelevant to the issue of whether an employee, in her individual capacity, can refer an alleged unfair dismissal dispute to this court pursuant to a section 189A process.

 

[52]  In all the circumstances, the point in limine that the applicant does not have locus standi to file the present claim has no merit and falls to be dismissed.

 

Costs

 

[53]  The respondent sought costs against the applicant.

 

[54]  The applicant submitted that even if the points in limine are upheld, no costs should be ordered against her as she remains unemployed with no source of income, unlike the respondent which is well resourced and funded by taxpayers. However, if the points in limine fail, the applicant submitted that the respondent should be ordered to pay costs on an attorney and own client scale.

 

[55]  The applicant who was dismissed and is currently unemployed has had to incur additional legal costs because of the points in limine raised by the respondents. Those points in limine have been found to be without merit. The respondent knew that the applicant referred her dispute to the CCMA first and was aware of the condonation application that she brought. Despite this knowledge, it raised the lis alibi pendens point in an attempt to stop the applicant from pursuing a despite that is properly before court based on a NUMSA referral that was filed well after the applicant had started the process of challenging her dismissal. The locus standi point, on Mr Mahomed’s submission was a novel point which had not been determined before. It is obvious why the point has not come up before as the answer is to be found in the provisions that l have referred to in paragraph 50 above, read in that sequence. There is no reason why the applicant should be left out of pocket in respect of the costs associated with the points in limine. She must be re-imbursed for the costs that she has incurred in opposing the points in limine, considering that she must still incur further legal costs in pursuing her unfair dismissal claim. However, costs are awarded on the usual party and party scale.

 

[56]  In the premise, the following order is made:

 

Order

 

1.  The respondent’s points in limine of lis alibi pendens and lack of locus standi are dismissed.

2.  The respondent is ordered to pay the applicant’s costs associated with the points in limine.

 

T. Gandidze

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant:              Mr I Mahomed

Instructed by:                     Cliffe Dekker Hofmeyr Inc

 

For the Respondent:          Mr Baliso

Instructed by:                     Baliso Attorneys

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